Umed Singh vs State of Haryana

Nirmal Singh, J.

The point arises in these petitions is whether the District & Sessions Judge has the power to withdraw or recall the Sessions case after the commencement of the trial.

The facts are not disputed in these cases. 11 Sessions trials were pending in the court of Additional Sessions Judge, Fast Track Court, Sonepat. List of these cases is attached as Annexure P1 (Crl. Misc. No. 11597M of 2003). The cases mentioned at Serial Nos. 1, 3 to 11 were fixed for prosecution evidence, whereas case mentioned at serial No. 2 was fixed for arguments. The learned District & Sessions Judge, Sonepat vide order dated 12.12.2002 withdrew all the cases from the court of Shri B.S. Rawat, Additional Sessions Judge, Fast Track Court and made over to the court of Smt. Anita Chaudhary, Addl. Sessions Judge, Sonepat for disposal in accordance with law.

The Sessions Judge has been empowered under section 409 Cr.P.C. to withdraw the cases and appeals. Section 409 Cr.P.C. reads as under :

"409. Withdrawal of cases and appeals by Sessions Judges (1) A Sessions Judge may withdraw any case or appeal from or recall any case or appeal which he has made over to, any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him.

(2) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge.

(3) Where a Sessions Judge withdraws or recalls a case or appeal under sub section (1) or subsection (2) he may either try the case in his own court or hear the appeal himself, or make it over in accordance with the provisions of this code to another Court for trial or hearing, as the case may be.

A perusal of subsection (2) to Section 409 Cr.P.C. shows that at any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge. But when the proceedings has commenced in the trial or appeal, then Sessions Judge has no power to withdraw or recall the case or appeal. Similar proposition has came up before Division Bench of Karnataka High Court in Amrithappa and another v. State of Karnataka, 1982 Criminal Law Journal 1336 and it was held by the D.B. as under :

"Under the powers vested in me under Section 409 Cr.P.C. 1973, the Sessions Case No. 21 of 1990 now pending on the file of II Addl. Sessions Judge, Dharwar is hereby withdrawn from his file and taken to the file of Principal Sessions Judge, Dharwar for disposal according to law." It is plain from the order that the principal Sessions Judge while passing the order has overlooked S. 409(2) of the Cr.P.C. which reads as follows :

`At any time before the trial of the case or the hearing of the appeal has commenced before the Addl. Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge.''

and has made use of the provisions in Section 409(1) of the Cr.P.C. S. 409(1) of Cr.P.C. would have been applicable in case the Second Addl. Sessions Judge had not commenced the trial. What the Principal Sessions Judge has done after passing the above order is to examine one more witness as P.W.10 and five court witnesses. He had no jurisdiction to withdraw the case under section 409(1) Cr.P.C. in view the case under Section 409(2) of the Cr.P.C. and proceed with the trial. Therefore, the trial held by the Principal Sessions Judge is not in accordance with law and as such is without jurisdiction."

The Division Bench of Delhi High Court in Ram Singh v. The State and another, 1990(3) Recent Criminal Reports 386 while examining the powers of the Sessions Judge to withdraw the cases under Section 409 Cr.P.C. has observed that after commencement of the proceedings when evidence was being recorded, the withdrawal of the case is in contravention of the provisions of sub section (2) to Section 409 Cr.P.C. In that case, case of petitioner Ram Singh was withdrawn alongwith number of other cases pending in the court of Shri Lokeshwar Parshad, Addl. Sessions Judge, Delhi and was assigned to the court of Shri S.L. Bhayana, a newly appointed Additional Sessions Judge. The Division Bench held that the Sessions Judge has no power to withdraw the case after the commencement of the trial.

Similar view has been expressed by Karnataka High Court in case of P. Sridhar v. State by Cubbon Park Police, 2001(4) RCR(Criminal) 531 .

The Haryana Additional District & Sessions Judge (Adhoc) Service Rules have been notified vide Notification dated 16.10.2001. Under Rule 10 of the Rules, the District & Sessions Judge has been given powers to transfer and withdraw the cases from the Fast Track Court. When these rules have been framed, Section 409 Cr.P.C. has not been taken into consideration as the rules do not take precedence over the provisions of Criminal Procedure Code as it has been laid down by the Apex Court in State of Punjab v. Raj Kumar, 1988(2) SLR 83 : 1988(1) RCR(Crl.) 639 (SC) .

In the instant case, cases mentioned at serial Nos. 1 and 3 to 11 were fixed for prosecution evidence and case mentioned at Serial No. 2 was fixed for arguments. In all the cases the proceedings have commenced. Therefore, the order passed by the Sessions Judge is not in consonance with subsection (2) to Section 409 Cr.P.C.

For the reasons mentioned above, this and connected petitions are accepted. JUDGMENT dated 12.12.2002 passed by the Sessions Judge, Sonepat is set aside. The case will remain for adjudication before Additional Sessions Judge, Fast Track Court and the proceedings in all the cases will commence from the state those were withdrawn from the Fast Track Court. The Fast Track Court is directed to dispose of the cases in accordance with law.